Jesper Windahl October 26 2022 Court clarifies whether CMR carrier can transfer responsibility for omitted customs clearance to customer WSCO Advokatpartnerselskab | Shipping & Transport - Denmark Jesper Windahl Shipping & Transport FactsDecisionCommentFactsA Danish freight forwarder agreed to transport a shipment of pipe elements from Schaffhausen, Switzerland, to Sweden. The forwarder subcontracted the carrying out of the transport to a Bulgarian carrier.In connection with the booking, the forwarder stated that the customs documents to be used for the transit-procedure in the European Union would be delivered by the sender in Switzerland, and that the carrier would "just have to go to custom direct to go out".Upon the driver's arrival at the border, there was uncertainty as to whether customs clearance had been carried out correctly. The following correspondence took place between the forwarder and the carrier:Carrier: Now he leave CH but no police there they only close the ticket for maut, no stamp or sign on a papers is that OK?Forwarder: Police? What do you want with the police? He must go to the customs.Carrier: I mean the customs officer they saw the papers and do not make anything tell him to go only close ticket.Forwarder: Then it's ok.Carrier: My question is if he is transit then?Forwarder: What? He must not do anything anymore then deliver papers at unloading place.As a result of the shipment entering the European Union without having been presented for customs clearance, the Swedish customs authorities ordered the carrier to pay customs duties and import VAT of 360,463 Swedish krona.On this basis, the carrier filed legal proceedings against the forwarder demanding that the forwarder pay the amount. In support of this demand, the carrier asserted that:the forwarder had not instructed the carrier that the consignment should be presented to customs upon entry into the European Union;the forwarder should have instructed the carrier on what to do since the carrier stated that the police had only acknowledged the payment of road tax, but had not stamped or signed the customs documents; andthe forwarder instructed the carrier that, regardless of the failure to stamp the documents, the driver should simply continue the transport to Sweden.The forwarder disputed this claim and instead claimed that:the carrier was responsible according to article 11 of the Convention relative au contrat de transport international de marchandises par route (CMR) having used the delivered customs documents incorrectly;it was the duty of the carrier to present the customs documents when exiting Switzerland; andit was not proven that the carrier had produced the documents at customs.Decision The court found that the driver had only presented the documents to a person at the border who took care of road tax only and that the carrier was responsible for the failure to produce the documents.The court further stated the following;[The] court [is] not in agreement with [the carrier's] claim that information on the exact building or buildings the driver should go to when he arrived at the border crossing at Thayngen is information that must be submitted to the carrier pursuant to Art. 11 of the CMR . . . The court finds that the e-mail communication . . . immediately after the truck crossed the border into the EU on 30 March 2021 cannot lead to [the carrier] . . . not being responsible for the failure to present the customs documents. If [the carrier] were to escape responsibility for the lack of presentation of the customs documents, it would firstly require a clear and unequivocal statement from [the carrier's] side that the customs documents had not been presented to the customs authorities and then an acceptance of this relationship from [the forwarder's] side. [The carrier's] statement in the email of 30 March 2021 at 17:04:49 by that "the customs officer they saw the papers and do not do anything tell him to go only close ticket" is not a clear and unequivocal indication that the customs documents were not presented to the customs authorities. On the contrary, the email shows that the driver was under the delusion that the documents had been presented to the customs authorities.CommentIt appears from the judgment that, according to article 11 of the CMR, it is the responsibility of the carrier to ensure that the delivered customs documents are correctly presented for customs clearance, and that the client is not obliged to give specific instructions on how this should be done at the border point.If uncertainty arises as to whether the documents have been presented correctly for customs clearance, it is the responsibility of the carrier performing the transport to provide clarification.It must be assumed that the performing carrier, if there is uncertainty as to whether a customs clearance has been carried out correctly, can seek instructions from their customer, but the responsibility for an omitted customs clearance cannot be transferred to the customer unless there is a clear contractual basis for this.For further information on this topic please contact Jesper Windahl at WSCO Advokatpartnerselskab by telephone (+45 3525 3800) or email ([email protected]). The WSCO Advokatpartnerselskab website can be accessed at www.wsco.dk.